The Issue Whether Michael J. Rodgers abandoned his position and resigned from the career service within the contemplation of Rule 22A-7.010(2), Florida Administrative Code?
Findings Of Fact V. G. "Jerry" Collins, a DOT maintenance engineer for 14 years, was Michael Rodgers' supervisor in June of 1987, when DOT employed the latter as a highway maintenance technician II at its Perry yard. While recovering from a job-related injury, Mr. Rodgers had been assigned to pump gas there. After Mr. Rodgers began work for DOT, he was furnished a copy of DOT's employee handbook. DOT's Exhibit No. 6. On page 12, the handbook states: If, for any reason, you are going to be late or absent when prior approval has not been obtained, you must notify your immediate supervisor within one hour of your regular authorized starting time. This will allow the Department to effectively schedule your work assignments on a daily basis. When you call in, you should give the reason(s) for your absence, type of leave requested and date and time you expect to report back to work. If you are unable to report back to work on the date and time given contact your supervisor, again, to explain why and request an extension of leave as needed. If you fail to contact your supervisor or other authorized person, within the first hour of absence, you will be placed on unauthorized leave of absence without pay for the entire period of time absent from work. If there were extenuating circumstances to keep you from making such contact, this will be taken into consideration at a later time. If you do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence. Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given. DOT's Exhibit No. 4. On page 43, the handbook discusses the abandonment rule: JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. DOT's Exhibit No. 3. Mr. Rodgers signed a form acknowledging receipt of the handbook on December 16, 1983. DOT's Exhibit No. 5. At about four on the afternoon of Monday, June 22, 1987, Mr. Collins asked Mr. Rodgers when his next doctor's appointment was. Mr. Rodgers replied, "I need to see him tomorrow." (T. 35) He did not "state that it would be for illness" (T. 53) or specify the reason for the visit. (T. 74) Believing Mr. Rodgers had an appointment to see his doctor the following day, Mr. Collins said, "That's fine, when you come back to work bring a doctor's certificate." (T. 17) But the leave Mr. Collins authorized Mr. Rodgers to take was "not a leave of absence for illness." (T. 53) On Tuesday, June 23, 1987, A DOT employee marked Mr. Rodgers absent for the day on "authorized leave" (T. 18) without pay. Mr. Rodgers, who lives about 60 miles from Perry, travelled to Dr. Hauser's office in Old Town on Tuesday morning "to sit down and talk with him about some information [he] needed," (T. 36-37) concerning an automobile accident's forensic sequelae. He was told to return later that day, because the doctor could not see him immediately. Although he returned at noon, and on four different occasions that afternoon, the doctor gave other patients priority. Mr. Rodgers then telephoned DOT's Perry yard, and "gave the secretary . . . the message that [he] was unable to see the doctor and . . . would still need to be off . . . to attempt to see him again on Wednesday the 24th." (T. 24, 38) When Mr. Collins learned of Mr. Rodgers' conversation with the secretary, he asked William S. Clark to telephone Dr. Hauser's office, at the Tri-County Medical Center. Betty in Dr. Hauser's office told Mr. Clark that, although Mr. Rodgers had in fact visited the office, he had no appointment. On Wednesday morning, DOT's attendance records were marked to reflect that Mr. Rodgers was absent on authorized leave without pay, although Mr. Collins testified that leave never was authorized for that day. (T. 19, 80) Later Wednesday, Mr. Collins, under the impression that Mr. Rodgers "had lied about going to the doctor for a doctor's appointment," (T. 82) ordered that the attendance records for Tuesday and Wednesday be altered to show that Mr. Rodgers' leave was not authorized on those days. (T. 19, 80, 82) On the afternoon of Wednesday the 24th, Mr. Rodgers, who had inquired at the office about Dr. Hauser's availability on two occasions earlier in the day, saw Dr. Hauser, discussed effects of the automobile accident, and made an appointment for the following day to have his back examined. (T. 38) On Thursday, the 25th, he kept the appointment, and obtained a slip of paper attesting the fact. But, in Mr. Collins' view, Mr. Rodgers' employment had ended before he saw the doctor that day: "He was considered to have abandoned his position by 9:00 a.m. Thursday morning since he had not called in [after Tuesday afternoon.]" (T. 79) When Mr. Rodgers returned to work on Friday, June 26, 1987, Mr. Collins read, then returned, the note from the doctor, informed Mr. Rodgers of the changes in the attendance records, and advised him that his employment had terminated.
Recommendation It is, accordingly, RECOMMENDED: That DOT reinstate Michael J. Rodgers as a highway maintenance technician II at its Perry yard, with back pay since June 26, 1987. DONE and ENTERED this 27th day of May, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 27th day of May, 1988. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Aaron A. Green, Esquire P. O. Box 1265 Gainesville, Florida 32602 Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue What amount of legal fees and costs should be awarded to Petitioner pursuant to Section 120.569(2)(e) or 57.105(5), Florida Statutes, for Respondent’s erroneous classification of Petitioner’s position and subsequent failure to correct that error and reclassify Petitioner’s position back to career service as requested by her in Georgalis v. F.D.O.T., DOAH Case No. 03-4665SED.
Findings Of Fact On April 1, 2002, Petitioner was discharged from her position with the Department without stated cause or hearing. See Petitioner’s Ex. 1-2, Dep’t of Transportation v. FCHR, 842 So. 2d 253, 256 (Fla. 1st DCA 2003). On June 11, 2003, Petitioner was temporarily reinstated by order of the Circuit Court to her position with the Department pursuant to section 112.3187(9)(f). Petitioner’s Ex. 1-3. The administrative case underlying this request for fees and costs was initiated by Petitioner through the filing of a Petition for Formal Administrative Hearing on August 15, 2002. Petitioner’s Ex. 1-4. In that Petition, Petitioner demonstrated, through reference to the position description provided to her by the Department, that she did not fit within any of the categories of employees exempted from career service by Section 110.205(2)(x), Florida Statutes. Petitioner’s Ex. 1-4, paragraph 7. Petitioner also put the Department on notice that she believed the Department’s action in reclassifying her was “frivolous and was done for an improper purpose,” since it was contradicted by the Department’s own documents. Petitioner’s Ex. 1-4, paragraph 12. She also requested that she be awarded appropriate attorneys’ fees and costs. Id. After nearly four months, the Department forwarded the Petition to the Division of Administrative Hearings for a formal administrative hearing regarding whether its decision to reclassify Petitioner was proper. Petitioner’s Ex. 1-5. By this letter, which was filed with the Division of Administrative Hearings on December 10, 2003, the Department requested a formal administrative hearing and manifested its opposition to the relief requested by Petitioner in her Petition. A hearing was held in DOAH Case No. 03-4665SED on April 15, 2004. Following the preparation of a transcript, the parties submitted Proposed Recommended Orders. Petitioner filed a Motion to Strike portions of the Department’s Proposed Recommended Order because it improperly raised an argument that Petitioner could properly be exempted from career service because she was an “administrator.” Petitioner’s Ex. 1-6. That Motion was granted. Petitioner’s Ex. 1-7.1/ On July 2, 2004, the undersigned entered a Recommended Order concluding that Petitioner was improperly reclassified into Select Exempt Service. Petitioner’s Ex. 1-8, p. 12. On September 1, 2005, the Department entered a Final Order adopting the Recommended Order entered in DOAH Case No. 03-4665SED.2/ Petitioner’s Ex. 1-11. Paragraph 13 of the fully-adopted Recommended Order states that: based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001. Petitioner’s Ex. 1-8, paragraph 13. In paragraph 19 of the fully-adopted Recommended Order, the undersigned concluded that: [t]he suggestion of the Respondent’s witness that the exemption should apply if a state employee is assigned to work with anyone retained or commissioned by Respondent to perform services for Respondent, however menial the task, simply misconstrues the statutory exemption: the relevant issue for the purposes of the exemption is whether such persons are department “employees,” not whether a department has contracted or engaged their services as independent technical consultants. Such contract administration is not relevant to the issue of whether Petitioner could properly be classified as a selected exempt employee. Petitioner’s Ex. 1-8, paragraph 19. Following entry of the Recommended Order, Petitioner filed her two (2) Motions for Attorneys’ Fees. Petitioner’s Ex. 1-12 and 1-13. These motions seek an award of attorney’s fees and costs based on the lack of factual or legal support for the Department’s opposition to Petitioner’s request that the Department correct its error in reclassifying her position to Select Exempt Service. Id. Petitioner submitted an affidavit and itemized statement of the requested hours, a summary of hours by the attorney, and a summary of costs incurred in this matter. Petitioner’s Ex. 1-14. Petitioner also submitted the testimony of J. Steven Menton, Esquire, who corroborated the reasonableness of the services and time expended by Petitioner’s counsel and also confirmed the reasonableness of the fees charged and costs incurred by Petitioner’s counsel for those services. The Department did not contest the number of hours sought by Petitioner’s counsel. Respondent did offer the testimony of Michael Mattimore, Esquire, who was also counsel of record for the Department in this case, suggesting that the rates charged by Petitioner’s counsel exceeded those which are normally charged by similar attorneys in the community. Mattimore’s testimony related to fees charged in “employment” law cases in which he has been involved during his career and did not focus on administrative litigation challenging the actions of a governmental agency, such as the present case which involved more than merely examining the factual circumstances surrounding a discharge or other adverse employment action. Confirming the complexity of the underlying case was Mattimore’s testimony regarding the outcome in other reclassification cases. The great majority of reclassification challenges (more than 95 percent of them) have been resolved in favor of the governmental agency or have not been pursued by the impacted employee. Id. The outcome obtained by attorneys for Petitioner in the underlying case is suggestive of fees toward the high end of the range. Petitioner reported the following hours and rates (Petitioner’s Ex. 1-14): LAWYERS: Hours Rate Amount M. Stephen Turner, P.A. 44.40 $400 $17,760.00 David K. Miller, P. A. 1.00 $300 $ 300.00 Martin A. Fitzpatrick 228.50 $250 $57,125.00 Brooke Lewis .90 $200 $ 80.00 TOTAL ATTORNEY HOURS 274.80 $75,365.00 Paralegals: Theresa J. Everhart Hours 1.90 Rate $80 Amount $152.00 Trishia Finkey 1.00 $80 80.00 TOTAL PARALEGAL HOURS 2.90 $ 232.00 TOTAL LEGAL FEES: $75.597.00 The hours and rates requested are found to be reasonable in view of the novelty and complexity of the issues, level of legal skills required, and the result obtained for the Petitioner. The rates sought are in line with fees charged by similarly-situated attorneys for similar work in the community. The amount requested is reasonable and justified under the circumstances. Moreover, the costs and expenses for which reimbursement is sought ($1,523.25) and the expert witness fees of $1400 ($280 /hour for 5 hours) are also reasonable and are of a kind typically billed to clients in addition to the hourly rate charged.
Findings Of Fact On July 9, 1986 Petitioner, a Clerk Typist Specialist employed by the Department of Health and Rehabilitative Services, signed a receipt acknowledging that she had received a copy of the Department's Employee Handbook which contains the information that an employee who is absent for three consecutive workdays without authorization may be considered to have abandoned his or her position and thereby to have resigned. On September 3, 1987 Petitioner telephoned her supervisor to advise him that she had an interview scheduled and that she would be at work by 9:30 a.m. She, however, thereafter failed to appear at work and failed to make any further contact with her supervisor on September 3, 4, 8, 9, 10, and 11, 1987. On September 11, 1987 by certified letter the Department advised Petitioner that, as of the close of business on September 9, she was deemed to have abandoned her position and to have resigned from the Career Service due to her unauthorized absence for three consecutive workdays, i.e., September 3, 4, and 8, 1987.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is, RECOMMENDED that a Final Order be entered deeming Petitioner to have abandoned her position and to have resigned from the Career Service. DONE AND ORDERED this 30th day of November, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987. COPIES FURNISHED: Ruby Holloway-Jenkins 649 West 4th Street Riviera Beach, Florida 33404 K. C. Collette, Esquire District IX Legal Counsel 111 Georgia Avenue West Palm Beach, Florida 33401 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
Findings Of Fact The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated: It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten (10) days suspension without pay up to dismissal. Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.
The Issue The issues in this matter are whether Petitioner was a supervisory employee as defined by Subsection 110.205(2)(x), Florida Statutes (2001), and was, therefore, properly reclassified from Career Service to Selected Exempt Service effective July 1, 2001.
Findings Of Fact The 2001 Florida Legislature enacted a substantial revision of the Florida Civil Service system referred to as the "Service First" initiative. (See Chapter 2001-43, Laws of Florida). This revision, which became effective on July 1, 2001, substantially expanded the parameters of the Selected Exempt Service classification to include many positions which had previously been identified as Career Service positions. Generally, Selected Exempt Service employees serve at the pleasure of the agency head and are considered at-will employees; whereas, Career Service employees have greater employment rights and job security. Petitioner was employed by Respondent at the Pinellas Maintenance Yard from December 15, 1997, to September 19, 2002. Initially, Petitioner held the position of Office Support III, but was eventually promoted to Office Support V in June 2001, both Career Service classifications. Following the enactment of the Service First initiative, Respondent reclassified Petitioner's Career Service position to Selected Exempt Service status in July 2001. On September 19, 2002, Petitioner was terminated from employment without explanation. His annual salary was $32,500. Following the decision in Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), Respondent notified Petitioner of his rights to seek an administrative hearing and challenge the reclassification. Petitioner timely challenged Respondent's action. During his tenure working for Respondent, Petitioner, pursuant to his written position description, was responsible for various administrative functions, including personnel, records, and fiscal matters, as well as supervisory responsibilities, including the supervision of a few administrative staff. Specifically, his position description provides in part: 20% of time: Supervises and/or participates in the daily administrative activities . . . . Ensuring the reception telephone and radio are fully staffed at all times. . . 15% of time: Supervises and/or participates in the personnel activities for Pinellas Maintenance Office. Counsels employees in matters of retirements, benefits, grievances, discipline and other personnel and work related problems. . . 15% of time: Supervises and/or participates in the fiscal activities for the Pinellas Maintenance Office. Supervises the maintenance of ledgers and Journals associated with local Purchase Orders, local Charge Accounts and Purchase Requisitions, Utility Invoice Transmittals, Contract Invoice transmittals, Partial Payments, etc. . . 10% of time: Directs purchasing for the Pinellas Maintenance Office. . . 10% of time: Serves as representative of the Pinellas Maintenance Engineer at meetings. . . 10% of time: Receives incoming mail, reviews and distributes to appropriate personnel. . . 5% of time: Participates in the selection process for entry level Field Operations Unit positions. . . 5% of time: Directs and coordinates the maintenance and use of records storage. . . 5% of time: Trains employees in methods for performing an efficient and effective job. 5% of time: Performs other related duties as required. Petitioner admits that he was responsible for and routinely engaged in many activities that were supervisory in nature. The evidence supports the fact that Petitioner performed these duties, and his performance evaluations reflect his activity. Petitioner's position description allocated specific time frames to the written duties and responsibilities. Upon careful review, the position description provides that the Office Support, Level V position employee shall "supervise and/or participate" in administrative, personnel, and fiscal matters 50 percent of the work-time. The remaining 50 percent of work-time is allocated to other duties, including purchasing, attending meetings, mail distribution and inquiries, assisting with the selection process of certain entry level positions, coordinating records storage, training certain employees, and performing other "related duties as required." While Petitioner admits that he performed supervisory activity, he contends that it consumed a small percentage of his work-time. He further argues that he was authorized and required to spend 50 percent of his time "supervising and/or participating in" certain activities. Petitioner alleges that he spent little time "supervising" and most of his time "participating" and actually performing the activities. The evidence demonstrates that among the 80 to 100 people employed at the yard, Petitioner supervised a personnel technician, a financial clerk, a clerical employee, and a receptionist, all of whom required limited supervision. Petitioner primarily served as the personnel liaison for all of the employees, maintained their files, researched personnel matters, and responded to inquiries. He handled the personnel paperwork related to hiring and firing, leave, pay adjustments, travel reimbursements, and employee benefits. In addition, Petitioner investigated and processed workers' compensation claims and handled the yard's safety and training records. He worked on special projects including ferreting out overtime abuse, installing a security system, and handling certain maintenance issues. In addition to his administrative personnel responsibilities, Petitioner admittedly supervised, trained, directed, and evaluated four subordinates and was responsible for improving their performance via counseling and corrective action. He initiated disciplinary action and issued a written reprimand to one employee with poor attendance. On occasion, Petitioner conducted staff meetings with his subordinates and also met with them individually. He managed attendance and approved leave for his staff of four. He participated in interviewing and selecting candidates for open positions under his supervision and determined the appropriate criteria, created the interview questions, and was a member of the interview panel. Petitioner was evaluated, in part, upon his supervision of subordinates. One evaluation noted that he needed to improve follow-up with assignments made to others and another indicated that he capably initiated change, but occasionally required assistance to effectuate it. Petitioner's evaluations also assessed his leadership and delegation skills, and one noted that he delegated well, but needed to work to regain better control of his areas. Although some of Petitioner's time was spent supervising, the evidence demonstrates that the vast majority of his work-time was spent performing non-supervisory activities. The facts show that Petitioner actually performed the noted activities the majority of the time and supervised those activities on occasion. Furthermore, Mr. Nawab, who periodically served as Petitioner's supervisor, provided credible evidence that Petitioner's primary responsibilities and the majority of his work-time involved non-supervisory activities. While Petitioner, during his testimony, diminished the time he spent engaged in supervisory work, the credible evidence demonstrates that he spent the minority of his work-time communicating with, motivating, training, and evaluating employees and planning and directing employees' work. Although Petitioner may have demonstrated mediocre supervisory skills, which does not make the position any less supervisory, neither Petitioner's supervisor nor his position description required him to spend the majority of his work time engaged in those supervisory activities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The position of Office Support V for the Pinellas Maintenance Yard for the State of Florida Department of Transportation was not exempt from Career Service classification as defined in Subsection 110.205(2)(x), Florida Statutes (2001); Respondent improperly reclassified the position as Selected Exempt Service; and Petitioner should be reinstated with the full benefits accrued since his termination on September 19, 2002. DONE AND ENTERED this 25th day of May, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2004. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350 324 South Hyde Park Boulevard Tampa, Florida 33606 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department. On May 10, 1991 the Petitioner was arrested and placed in isolation without any outside contact except in the evenings by phone. By letter dated May 15, 1991, mailed to Petitioner's home address, the Department advised Petitioner that having been absence from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned his position and resigned from career services. Additionally, this letter advised the Petitioner that he had 20 calendar days from receipt of the notice to petition the State Personnel Director for a review of the facts to determine if the circumstances constituted abandonment of position. The return receipt for this letter appears to be signed by Vickie Carpenter but does not indicate the date it was signed by her. A copy of this same letter was mailed by the Department to the Petitioner at the jail but no return receipt was ever received by the Department. However, the Petitioner testified at having received the letter around May 23, 1991. On May 23, 1991 the Respondent was released from jail and was available for work beginning on May 24, 1991. However, the Department had already terminated the Petitioner based on abandonment of position. By letter dated June 6, 1991 the Petitioner requested the State Personnel Director to review his case. By letter dated June 12, 1991 and received by Petitioner on June 14, 1991, the Department again advised Petitioner that the Department assumed that he had abandoned his position and again outlined the review process. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. By letter dated August 27, 1991 the Department advised Petitioner that it was withdrawing the action of abandonment of position, and that he was reinstated to his position effective August 30, 1991. However, by letter dated August 29, 1991 the Department advised Petitioner that he was to report for work on September 3, 1991 rather than August 30, 1991, and that he was to report to Ft. Myers rather than to his old job in Punta Gorda. Additionally, Mark M. Geisler, Subdistrict Administrator, the author of the letter, advised the Petitioner that since the issue of back pay had been discussed with DeLuccia it was best for Petitioner to contact him in that regard. Petitioner was reinstated by the Department on September 3, 1991. Petitioner did not at any time agree to forego any back pay in order for the Department to reinstate him. The Petitioner has never received any back pay for the period beginning Friday, May 24, 1991 (the day he was able and ready to return to work) through Monday, September 2, 1991 (the day before Petitioner returned to work). Petitioner's wife, Vickie L. Carpenter was, at all times material to this proceeding, employed by the state of Florida, and because she and Petitioner both were employed by the state of Florida their health insurance was furnished by the state of Florida at no cost to them. Upon the Department terminating the Petitioner his wife was required to pay for her health insurance until Petitioner was reinstated on September 3, 1991. Petitioner was unable to report to work during the period from May 10, 1991 through May 23, 1991, inclusive, due to being incarcerated, and was on unauthorized leave of absence during this period. Therefore, Petitioner is not entitled to any back pay for this period, and so stipulated at the hearing. However, Petitioner is entitled to receive back pay for the period from May 24, 1991 through September 2, 1991, inclusive. There is sufficient competent substantial evidence to establish that the Department was aware of Petitioner's incarceration and that it was not Petitioner's intent to abandon his position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Administration enter a Final Order (1) confirming the action of the Department that Petitioner did not abandon his position with the Department, and (2) reimbursing Petitioner for back pay for the period from May 24, 1991 through September 2, 1991, inclusive, and for any other benefit that Petitioner was entitled to during this period, including, but not limited to, health insurance benefits. DONE and ENTERED this 12th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1991. COPIES FURNISHED: Thomas J. Carpenter 1669 Flamingo Blvd. Bradenton, FL 34207 Susan E. Vacca, Qualified Representative Department of Health and Rehabilitative Services P.O. Box 1415 Punta Gorda, FL 33951-1415 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Anthony N. DeLuccia, Esquire Department of Health and Rehabilitative Services P.O. Box 06085 Fort Myers, FL 33906
Findings Of Fact At the time Respondent was advised that DHRS was processing his resignation from his position as Social and Rehabilitative Services Counselor II, effective August 31, 1983 (Exhibit 1), Fox had been employed by DHRS for some 12 years. This was termed a "voluntary" resignation by reason of abandonment of position. Fox had been on leave without pay from August 12, 1983, through August 19, 1983 (Exhibit 4). On Monday, August 22, a woman called Fox's supervisor and told him that Fox was in Miami, his sister had been involved in an automobile accident, and he would not be in to work. On August 24 Fox called his supervisor, Gilbertson, to advise that he was still with his sister but would be back to work by noon on Friday, August 26. During this period, Monday through Friday, Fox was placed on family sick leave. At noon on Friday Fox had exhausted all his sick leave. Fox did not report to work until September 2, 1983, at which time he was given a copy of Exhibit 1, the original of which had been sent to his residence by certified mail. Fox gave no explanation for his absence but took the copy of the letter given him and left abruptly. He was not asked to explain his absence, nor did he offer any such explanation. Fox had earlier had differences with his supervisor, Gilbertson, over what Gilbertson considered excessive use of sick leave by Fox. Fox presented no evidence regarding his period of unauthorized absence from August 26 until he returned September 2. The one witness he called had frequently used sick leave without incurring the displeasure of Gilbertson. However, this witness in the recent past has had his gallbladder removed, hemorrhoid problems, and hepatitis; and had given no reason for anyone to suspect he was abusing the use of sick leave.
